Dana Milbank: A lawsuit with little merit

By Dana Milbank - The Washington Post

July 17, 2014 9:00 AM

WASHINGTON – Rep. Pete Sessions, the House Rules Committee chairman who led Wednesday’s hearing on Republicans’ plans to sue President Barack Obama, presented the legal credentials that have put him in this position of responsibility.

“I’m an Eagle Scout,” the Texas Republican told his colleagues. “I studied the merit badges that we took about governance, about cities, states, the national government.”

Merit badges! And his experience in the Boy Scouts isn’t the only thing that made Sessions a legal expert. He said he had “great professors” when he studied political science at Southwestern University. Also, Sessions told the panel, his father was a judge, and young Pete “understood his love of the law.”

See? The GOP lawsuit isn’t just a stunt to appease conservatives who would rather impeach Obama. It’s a serious legal case – Scout’s honor!

The chairman’s recitation of his constitutional credentials was just one of the things that turned Wednesday’s hearing into an amateur hour – or an amateur five hours.

There was also the testimony of Elizabeth Price Foley, a law professor from Florida International University who testified with conviction that “the House would have an excellent chance of winning” its lawsuit against Obama for delaying parts of Obamacare. Her confidence, however, was undermined by an article she wrote five months ago, arguing flatly that delays “cannot be challenged in court.”

The other Republican witness, George Washington University law professor Jonathan Turley, was more consistent: He has bemoaned executive authority since he testified in support of Bill Clinton’s impeachment, but Turley lacked confidence in the outcome. He acknowledged that the Republican litigants are “going to have a hard time” in district court, that “many judges are hostile” to giving Congress the legal standing to sue and that “the president has the advantage on standing.” Still, he counseled Republicans not to worry about the steep odds, saying, “I don’t believe that the challenges in front of this lawsuit is an excuse to do nothing.”

Then there was the problem of consistency. To justify a lawsuit, Republicans had to overcome their allergy to judicial activism – to force Obama to implement more quickly a law they have fought repeatedly to repeal. Walter Dellinger, a frequent Supreme Court litigator who served as a Democratic witness, quoted from the writings of several conservative scholars – John Roberts, Antonin Scalia, William Rehnquist, Jack Goldsmith – expressing skepticism about congressional standing.

Rep. Louise Slaughter of New York, the ranking Democrat on the Rules Committee, mocked the Republicans’ ideological contortions by reading a passage from “Alice in Wonderland”: “Sometimes I believe in as many as six impossible things before breakfast.”

To overcome the contradictions, Republicans on the panel employed various strategies. Rep. Michael Burgess of Texas played the bumpkin. “I’m just a simple country doctor, not a constitutional lawyer, but I do understand due dates,” he reasoned.

Rep. Tom Cole of Oklahoma acknowledged being conflicted: “I hate going to court. I consider it the civil equivalent of war.”

North Carolina Rep. Virginia Foxx said that Republicans would use the “power of the purse” to settle the dispute but that they can’t follow this more conventional route because “when the laws pass the House, they also have to pass the Senate.”

The Rules Committee doesn’t impose time limits, which caused Wednesday’s session to meander. Turley wandered expansively, making reference to King James, quoting from the movie “Jerry Maguire” and Shakespeare’s “Richard III,” noting his status as “a Madisonian scholar” and mentioning that he had a speech to give later in the day. Dellinger recalled his youthful days as a bartender and noted that “the amount of drinking has gone down considerably since I was an intern here.”

Rep. Jim McGovern, D-Mass., followed that by informing the panel that his father owned a liquor store. Cole assured Dellinger that “there’s more drinking that goes on here than you know – and I’d be happy to show you where.” There will be even more drinking if Burgess is correct: He asked the witnesses to comment on the hypothetical actions of “President Ted Cruz.”

The Rules Committee hearing room, upstairs from the House floor, is a tiny space, with just a dozen unreserved seats for the public. But after a couple of hours, most of those were empty. After four hours, Dellinger expressed his willingness to keep talking “until the last dog dies.”

A member of the committee remarked that the last dog had died two hours earlier. But the chairman didn’t crack a smile. There are no merit badges for self-deprecation.

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